Sri Lanka refugees stranded on a boat near Australia's shoreline are in legal limbo and fear torture if sent home.

A record 25,000 refugees reached Australia by boat in the year prior to Prime Minister Tony Abbott's election in 2013 [AFP]

Sydney, Australia - With one boat carrying Sri Lankan asylum seekers sent back and a second stuck in legal limbo on the high seas, Australia finds itself in uncharted waters on the divisive issue of refugees.

Conservative Prime Minister Tony Abbott swept the fractured Labor party from power last year in a flurry of three-word slogans, none so well known as the maxim: "Stop the Boats." According to Abbott, Australia was the victim of a "peaceful invasion" of people-smuggling vessels, the borders had fallen and only the hardline policies of his coalition could secure Australia once more.

A record 25,000 refugees arrived by boat in the year prior to Abbott's election, while some 1,200 refugees are believed to have drowned in the treacherous sea corridor between Australia and Indonesia in recent years.

The sight of dilapidated, overcrowded boats on the horizon is a particular issue for Australia; despite accounting for almost a third of all asylum claims, those arriving by plane barely garner attention.

Apart from a brief "humanitarian" interlude, when Labor's Kevin Rudd came to power on promises to roll back the razor wire in 2007, Australia's refugee policy has been punitive. The "Pacific Solution" of banishing boat arrivals to spartan camps on Papua New Guinea's Manus Island and Nauru is now bipartisan policy.

Since coming to power in September, Abbott has handed responsibility for border patrols over to the military, with "illegal arrivals" towed back to sea in a secretive mission called Operation Sovereign Borders - the activities of which are classified on "national security grounds".

Now, Australia is holding 153 Sri Lankan asylum-seekers, 40 of them children, in limbo at sea, while the High Court convenes to consider whether the government has broken the law.

"We have descended into almost a totalitarian regime in terms of our immigration policy," said Trevor Grant, of the Australian Tamil Refugee Council. "We now live under a culture of secrecy and we have the amazing situation where we disappear people from public view in order to achieve a domestic political objective."

'My family will not be safe in Sri Lanka'

It took an application to the High Court for the government to even confirm the boat's existence on Tuesday. The number of boats turned around - and the circumstances in which this took place - is classified information.

Suresh, an ethnic Tamil living illegally as a refugee in Europe, received a call from the stricken vessel on Saturday. His three-year-old daughter, Febrina, and his wife were on board, along with her sister and parents.

I was so worried. My family members will not be safe in Sri Lanka.

- Suresh, asylum seeker

"I never knew that they were getting on this boat," Suresh said through an interpreter. "My sister-in-law contacted me and said 'We are having engine problems on the boat and we are in trouble. We are near the Australian border, please contact anyone that you can to help us out.'"

"My first thought was my daughter. I have only seen her when she was a couple of months old," he added. Suresh was told that the boat may have been intercepted by the Australian navy and could be handed over to the Sri Lankan navy. "I was so worried," he said. "My family members will not be safe in Sri Lanka."

Suresh - whose name has been changed to protect his identity - met his wife in an Indian refugee camp, where Febrina was born. "I left Sri Lanka because of torture by the Sri Lankan army," he said. "They arrested and jailed me two times and the second time, I decided that leaving Sri Lanka was the better option for my survival."

Eleven people on board the vessel are believed to have been tortured in Sri Lanka, according to Grant. One man was beaten for six hours with a plastic pipe filled with sand and suspended from the ceiling by a rope attached to his thumbs.

"That's an example of what these people face if they are sent back there," he said.

A reprieve

The Tamil Refugee Council won a reprieve for the passengers on Tuesday, as the government agreed to a last minute High Court injunction requiring that they give 72 hours notice before handing the group over to Sri Lankan authorities.

Earlier this week, a separate boat carrying 41 people was transferred after a cursory screening process. Four questions were asked over a patchy phone line to assess fears of persecution: name, country of origin, reasons for leaving, and where they boarded the boat.

UNHCR expressed "profound concern" at the screening protocols and said it was "not in a position at this time, to confirm whether they were in accordance with international law".

An open letter to the government, signed by 53 legal scholars from 17 Australian universities, warned that the screening protocol "clearly violates international law" and "is inconsistent with Australia's position as a non-permanent member of the UN Security Council".

Australian court to hear boat refugees case

The letter stated: "Holding asylum-seekers on boats in this manner also amounts to incommunicado detention without judicial scrutiny."

Australian immigration minister, Scott Morrison, rejected suggestions that the boat of 41 people returned this week faced the risk of mistreatment.

"We don't have those concerns and they are based on the assurances that the previous government also relied upon," he said in a statement on the issue, adding: "The Australian government takes very seriously our responsibilities, as does the Sri Lankan government, to people's safety and to the various obligations that we have under the various conventions that we're a signatory to."

Of those Sri Lankans arriving by boat to Australia, 90 percent are found to be genuine refugees.

And Australia's own foreign office urges citizens to exercise a "high degree of caution" when travelling to Sri Lanka due to the "unpredictable security environment", citing violence against political activists, aid workers, and journalists, and the "wide-ranging powers" of security forces.

Lawyers for the Tamils argued in court on Tuesday that returning them to Sri Lanka against their will is beyond the Abbott administration's powers. But the government claimed the boat was intercepted in Australia's contiguous zone rather than its territorial waters, meaning that those on board have no claim to protection under the Migration Act.

The legal wrangling is likely to continue for weeks, with the case expected to come before the full bench of the High Court.

If the asylum-seekers win and Australia is unable to return them to Sri Lanka under "enhanced screening", it would be a blow to Abbott's hardline deterrence policies, said Don Rothwell, professor of international law at the Australian National University.

"It's going to be the way in which the implications of this matter could be read by [future] Sri Lankan asylum-seekers, that an otherwise very hardline approach has been slightly compromised," he said.

The episode is being labelled Abbott's "Tampa" - referring to a Norwegian cargo ship that rescued 438 stricken asylum-seekers in 2001 and was then barred from entering Australian waters by conservative Prime Minister John Howard. The week-long stalemate culminated in the ship's captain declaring a state of emergency and defying Howard's orders. Special forces soldiers boarded his ship, amid an international outcry.

It shaped the election campaign that followed, immortalised in Howard's dictum: "We will decide who comes to this country and the circumstances in which they come."

According to the UNHCR, 32,200 people were displaced every day by persecution and conflict globally in 2013.

Impervious to the rhetoric of politicians, one thing is certain: come they inevitably will.

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